Fox v. Federal Casualty Co.

MARKS, Acting P. J.

Respondent Jennie M. Fox is the widow of J. L. Fox, deceased, who died from the effects of a gunshot wound inflicted on December 1, 1928, by L. M. Card-well, who was at the time constable of Chowchilla township, in the county of Madera, state of California. Appellant had issued to J. L. Fox a policy of health and accident insurance whereby it insured him “against the effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy solely through external, violent and accidental means.” Upon a trial of the case before the court without a jury, judgment was rendered in favor of respondent, who was the beneficiary named in the policy, and against appellant for the principal sum pro

[290]

vided in the policy as the benefit to be paid in case of the accidental death of the insured.

The appellant presents several grounds upon which it relies for a reversal of the judgment, but we only need to consider one of them.

The policy contained the following provision:

“This policy does not cover death, disability or loss of the insured caused by or resulting directly or indirectly from . . . injuries

intentionally

inflicted upon the insured by any person other than himself (assaults by burglars or robbers excepted). ’ ’

Appellant maintains that this provision of the insurance policy releases it from liability. Under the facts and circumstances appearing in this case we agree with it.

The evidence before us shows that on, December 1, 1928, L. M. Cardwell, accompanied by ten or more citizens, found the deceased walking across a field. Cardwell was of the opinion that the deceased was insane and evidently he had assembled the posse to take him into custody, although no warrant had been issued for this purpose. The deceased was armed with a piece of a grapestake about three feet long and an iron pipe about two feet long. The members of the posse surrounded him and he threw the grapestake at one of them. He then grasped the iron pipe in both hands and, raising it over his right shoulder, advanced toward Cardwell, threatening to kill him. Cardwell fired one shot from his pistol into the air, and, as the deceased continued his advance, fired the second into his body, which resulted in instant death. The last shot was fired when deceased was eight or more feet away from Cardwell. Cardwell testified that he “shot to stop him then, whether it killed him or not.”